Deep South Oil Co. v. Epstein

10 A.D.2d 551, 195 N.Y.S.2d 505, 1960 N.Y. App. Div. LEXIS 12198

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1960
• Status: Published

Opinion

Order appealed from unanimously reversed, on the law and on the facts and in the exercise of discretion, with $20 costs and disbursements to defendant-appellant, and the motion denied, with $10 costs. Defendant-appellant had brought two prior actions, one in the City Court against plaintiff-respondent, a Texas corporation, and the other in the Supreme Court against a related Delaware corporation. Stipulations were entered into in both actions in which liability was admitted, payments agreed upon and entry of judgment consented to in the event of default. Plaintiff-respondent then brought this plenary action to vacate said stipulation and for incidental relief, and moved to enjoin defendant from entering judgment in the prior actions and for permission to file answers in said actions nunc pro tune. ■ Defendant appeals from the order granting said motion, conditioned on the filing of a bond. There was clearly no warrant for according such relief to the Delaware corporation, which is not even a party to this action. The granting of leave to file answers nunc pro tune in the other actions virtually vacates the stipulation of settlement and affords plaintiff at this preliminary stage substantially all the relief sought in the plenary action. The moving papers, moreover, fail to make a sufficiently clear showing that the two successive stipulations of settlement, both comprehensive, prepared by lawyers, and over a month apart in point of time, were both induced by fraudulent misrepresentation and coercion so as to demonstrate a right to the relief of temporary injunction (Park Terrace Caterers v. McDonough, 9 A D 2d 113; Barricini, Inc. v. Barricini Shoes, 1 A D 2d 905). Concur — Botein, P. J., Breitel, Rabin, M. M. Frank and Yalente, JJ.